RICK L. MAHLER ATTORNEY AT LAW
I want to explain many issues on this page regarding several very complicated subjects having to do with Family Law. I have previously fought for my clients most if not all of the issues raised here but please be advised that this is a summary of the issues involved and is not meant to be a complete discussion of all the intricacies involved. I am merely trying to give you a basic of understanding of the issues so that if you desire we can discuss your particular issue or issues more thoroughly at a later date.
The Texas Legislature has created the Texas Family Code which governs how Texas courts are to administer justice in Family Law cases. Let me explain how divorce works in Texas in a little more detail.
Texas is a no-fault divorce state. That means generally that anyone who is married and lives in this state can get a divorce here whether their spouse wants a divorce or not. The only requirements are that person be resident of the Texas for at least six months and a domiciliary of the county in which they want to file for 90 days.
Divorces are generally broken down in to two kinds which are those with minor children and those without. Those with minor children obviously have questions about which parent the children are going to live with primarliy and which parent will have visitation. The standard established in the Family Code is what is "in the best interest of the child." There are many unofficial factors that commonly go into this decision. Some of them are which parent can provide the best environment for the children, the financial situation, the size of the house or apartment, how many bedrooms, how many other people and whether those people have problems are living there and what is the available school situation. Other factors that can be considered are who has the more favorable work schedule, who can provide the most stable emotional support, who has the best backup support when the custodial parent is at work or away. The job of an attorney is to try to help his client the present their situation in the best possible light as it relates to these issues. Once custody is decided the Family Code sets out a Standard Visitation Schedule, guidelines to determine appropriate child support and health insurance is to be handled. With the help of an attorney this things can possibly be modified to best fit your family's situation.
As far as property division, Texas is a community property state meaning that the presumption is that anything acquired during the marriage gives each spouse an undivided one-half ownership interest in the property unless it was acquired before the marriage, was a gift or was inherited by one of the spouses which is called separate property and is the exclusive property of the spouse who owns it. Any income accrued or debt incurred during the marriage is presumed to be community property unless certain conditions exist. Any one who reads this should be cautioned that this is a very rudimentary description of community versus separate property issues that arise in a divorce proceeding. There are many more factors and exceptions that can apply in this area.
Community property versus separate property decisions can affect the Court's property divisions of home and other real estate, retirements and investments, vehicles and other personal property. It also affects which party is awarded which part of any community debt that exists at the end of the marriage. There are also exceptions and other factors that go into the decision at court makes that are not discussed here that the reader needs to be aware. Ultimately, the court must divide the property according to the Family Code in a "fair, just and right manner."
The Family Code also provides a method of allowing the parties to have an earlier hearing than the final hearing since many time there are issues that need to be decided fairly quickly after a petition for divorce is filed. Either side or both can request a Temporary Hearing to ask the court what to do regarding who the children will live with temporarily and to decide all the issues that go with that such as temporary visitation, child support and healthcare arrangements. The court can also be asked to decide who lives in the family residence, who pays which bills and whether one party needs temporary spousal support. All of theses issues need to be discussed with the client so that they have a full understanding of them prior to any hearing.
These are some of the common issues that come up in divorces but in no way is an exclusive list. Hopefully this will give the reader a basic understanding of the divorce process in Texas. It is my goal to help my clients work their way through this very complicated proceeding in the easiest way possible but also to make sure that they achieve the best possible outcome.
The Family Code also sets out the procedures dealing with Child Custody. When I say Child Custody here, I am referring to individuals who have children with other individuals that they have not been married to.
The legal procedure the Family Code creates in these situations is called Suit to Establish a Parent-Child Relationship or sometimes called Suit Affecting a Parent-Child Relationship. I usually tell prospective clients that these legal actions are exactly like a divorce as it relates to Child Custody but there are no property issues involved in this type suit.
These suits are useful when a non-possessory parent wants to gain a legal relationship with their children to obtain access or a possessory parent wants to have a court to legally recognize the other parent of the children to obtain child support. . Either parent can gain actual custody of the children or be given visitation with the children, can be required to pay child support and the cost of health insurance.
The same factors that I discussed above regarding who get gets actual custody of the children apply here in these type actions as well. The same procedures regarding Temporary Orders also apply here.
Modifications of child custody orders are also governed by the Family Code. (It should by noted by the reader that the following is not an exact statement of the Family Code but are paraphrased statements of the law for the purpose of brevity. Anyone wishing to see the actual law should refer to Texas Family Code Section 156). The Family Code makes it difficult to modify prior court orders unless a party requesting modification can show one of several changes that has occurred since the previous order. Theses changes are that there has been a material and substantial change of circumstances of the child or one of the parties since the prior proceeding, the child is 12 years of age and has expressed to the court in chambers the desire to tell the court who the child wishes wants to be their primary custodian or the possessory custodian has relinquish primary care and possession of the child for at least six months.
Individuals who wish to obtain a change of the person who has the exclusive right to designate the primary residence of the child within one year of a previous order must show:
Individuals who wish to modify prior court orders should be cautioned that if a court finds that the modification is frivolous or designed to harass the other party that the filing party can be ordered to pay costs which includes the other party's attorney's fees.
All the temporary procedures described above dealing with temporary custody, temporary child support and other issues that are allowed to be brought before the court in a temporary hearing are applicable here if the Family Code's procedures are followed.
The Family Code also governs Termination of Parental Rights and Adoptions. Texas Family Code Section 161.001 lists the 21 grounds for the involuntary termination of a parental rights and I would refer the reader to that section to see all the individual grounds. I should caution an individual who is seeking to terminate the parental rights of an individual that the courts do not grant these type requests lightly and very good cause or causes are necessary to terminate a person's rights. Although I say that, I have obtained the involuntary termination of parental rights many times. Therefore if the situation is right, and individuals rights can be terminated over their objection.
The more common situation is that an individual will agree to have their parental rights terminated. This usually occurs when a parent has not exercised their visitation in a considerable length of time, they do not want to pay child support anymore or the individual and the child just do not get along. There are other situations but those are the most common. If the parent will sign a relinquishment then they do not even need to come to court in most cases.
Adoptions of children and stepchildren can generally occur after a parent's rights have been terminated. The Family Code requires a social study and a criminal background check of the adoptive parent but those are usually not a difficult hurdles to overcome.
The Child Protective Services Department (CPS) usually only gets involved with a family if there has been some allegation(s) of child neglect, abuse, endangerment or drug use by a family member. CPS goals are usually called for the reunification of the family after certain requirements are met by the parents or custodians of the children. An attorney is very helpful in these situations to assist the involved individuals protect their rights in court but also to help them guide their way through this very complicated process.
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